Public Deeds of Donation and Purchase and Sale: Usufruct and Restrictive Clauses

Context Note: This content describes Brazilian notarial law.

This article answers

• What documents are required for a public deed of purchase and sale or donation?
• What is the difference between reservation of usufruct and institution of usufruct in property donation?
• What are restrictive clauses of inalienability, unseizability, and non-communication, and how do they work?
• When is a public deed mandatory to transfer property ownership?
• What are the risks of formalizing a real estate transaction using only a private contract?

In summary

• Public deeds of donation and of purchase and sale are notary acts executed at a notary public office (tabelionato de notas) that grant public faith and legal certainty to the transfer of real estate property Lei nº 8.935/1994, art. 1º.
• Purchase and sale involves financial payment, whereas donation is a gratuitous act that allows the inclusion of usufruct and restrictive clauses.
• Usufruct divides property ownership into bare ownership (nu-propriedade) and the right of enjoyment, ensuring housing or income for the usufructuary.
• The effective transfer of real estate ownership occurs only when the public deed is registered on the property deed record card (matrícula do imóvel) at the competent Real Estate Registry (Registro de Imóveis) Lei nº 10.406/2002 — Código Civil, art. 1º.245.

What documents are required for a public deed of purchase and sale or donation?

You need to present a set of personal and property documents to the notary public office (tabelionato de notas) to qualify the parties and verify the regularity of the asset. The notary public (tabelião de notas) analyzes this documentation to ensure that the transaction complies with all validity requirements established by legislation Lei nº 10.406/2002 — Código Civil, art. 104.

For buyers, sellers, donors, and donatories, the document list includes:

• Official identification document with photo (RG [Identity Card], CNH [Driver's License], or professional class council card) and CPF (Individual Taxpayer Registry).
• Updated birth or marriage certificate (issued within the last 90 days).
• Recent proof of residence.
• Clearance certificate of federal tax and labor debts (certidão negativa de débitos).

For the real estate asset subject to the public deed of purchase and sale or donation:

• Certificate of registration (certidão de matrícula) and real encumbrances with real and personal reipersecutory actions, issued by the Real Estate Registry (Registro de Imóveis) no more than 30 days prior.
• Certificate of municipal tax clearance (IPTU [Urban Property Tax] for urban properties) or federal tax clearance (ITR [Rural Property Tax] for rural properties).
• Statement of clearance of condominium fees, signed by the property manager (síndico) with the election assembly minutes, if applicable.
• Paid transfer tax assessment form (ITBI for onerous purchase and sale or ITCMD for donation).

Submitting this complete documentation ensures that the public deed reflects the true legal situation of the parties and the estate Lei nº 10.406/2002 — Código Civil, art. 215.

What is the difference between reservation of usufruct and institution of usufruct in property donation?

In the reservation of usufruct (reserva de usufruto), you donate the bare ownership (nu-propriedade) of your real estate property to another person, but reserve for yourself the right to reside in the asset or receive its rental income. This model is common in family estate planning, ensuring that parents continue to enjoy the property during their lifetime while children receive future full ownership. To delve deeper into asset strategies, you can consult our guide on donation of assets in life.

In the institution of usufruct (instituição de usufruto), the dynamics are different. The property owner transfers the bare ownership to a beneficiary and, at the same time, establishes usufruct in favor of a third party. For instance, a grandfather donates a property to his grandchild, but institutes usufruct in favor of the child's mother.

The distinction lies in the holder who retains the right of enjoyment:

• Reservation of usufruct: The donor retaining direct possession and use of the asset.
• Institution of usufruct: A third party acquires the right of use and enjoyment over the donated property.

In both modalities, usufruct can be lifelong (vitalício) or temporary. Upon the death of the usufructuary, the right is extinguished, and full ownership consolidates in the hands of the bare owner (nu-proprietário) after cancellation of the usufruct at the Real Estate Registry. Read more about this topic in property donation with usufruct reservation.

What are restrictive clauses of inalienability, unseizability, and non-communication, and how do they work?

Restrictive clauses (cláusulas restritivas) are provisions inserted into the public deed of donation to protect the transferred asset against financial risks or future marriages of the donatories. The Código Civil (Lei nº 10.406/2002 — Brazilian Civil Code) authorizes the donor to attach these limitations to the donated assets.

The three main clauses perform specific functions:

• **Inalienability (inalienabilidade):** Prevents the donatory from selling, donating, exchanging, or giving in payment the received property. This restriction can be temporary or lifelong. Inalienability automatically entails unseizability and non-communication.
• **Unseizability (impenhorabilidade):** Ensures that the property cannot be seized by courts for debts contracted by the new owner. This protects the family housing or income source against creditors of the acquirer.
• **Non-communication (incomunicabilidade):** Prevents the donated asset from becoming part of the marital common estate, regardless of the marital property regime adopted in marriage or stable union by the donatory. To better understand how marital property regimes work in marriage, consult our article on prenuptial agreement.

Including these clauses requires attention to the donor's intent and the corresponding ITCMD tax collection. The notary public drafts the terms to ensure the legal efficacy of these limitations.

When is a public deed mandatory to transfer property ownership?

A public deed is mandatory for all legal transactions aimed at constituting, transferring, modifying, or waiving real rights over real estate properties valued at more than thirty minimum wages Lei nº 10.406/2002 — Código Civil, art. 108. This is the general rule established in Article 108 of the Código Civil (Brazilian Civil Code).

This obligation applies to:

• Purchase and sale of real estate with a value above the statutory threshold.
• Donation of real estate assets above the statutory limit.
• Exchange (permuta) of high-value real estate properties.
• Institution of usufruct by inter vivos act.

There are exceptions provided by specific legislation in which private contracts hold the legal effect of a public deed, such as in financing through the Sistema Financeiro da Habitação (SFH — Housing Financial System) or fiduciary sale (alienação fiduciária) executed with authorized financial institutions. Outside legal exceptions, a private instrument does not meet the formal requirement demanded by law. Without a public deed executed at a notary public office, the transaction suffers from nullity and cannot be registered at the Real Estate Registry Lei nº 10.406/2002 — Código Civil, art. 166.

What are the risks of formalizing a real estate transaction using only a private contract?

Formalizing the purchase and sale or donation of real estate using only a private contract — known informally in Brazil as a "drawer contract" (contrato de gaveta) — creates severe legal uncertainty. Brazilian legislation establishes that the transfer of real estate ownership between living parties occurs only with the registration of the title at the Real Estate Registry Lei nº 10.406/2002 — Código Civil, art. 1º.245.

The main risks of a private contract include:

• Absence of legal ownership: A party paying for property through a private contract holds only possession or a personal right, but is not the formal owner against third parties.
• Risk of seizure due to seller debts: Since the property remains registered in the seller's name, their creditors can attach the property in judicial or tax collection lawsuits.
• Death of the seller: In the event of the former registered owner's death, the property enters their probate proceedings (inventário), causing disputes with heirs.
• Duplicate sale: A dishonest seller might sell the same asset to another person who registers their public deed first, causing the original buyer to lose real rights over the property.

A private contract serves as a promise of purchase and sale (promessa de compra e venda) Lei nº 10.406/2002 — Código Civil, art. 1º.417, but does not replace a public deed at the notary public office and subsequent registration at the Real Estate Registry.

Document checklist

Use this checklist to verify the required documentation for drafting public deeds of donation or purchase and sale:

• [ ] RG and CPF of all parties (sellers, buyers, donors, and donatories).
• [ ] Updated marriage or birth certificate (issued within the last 90 days).
• [ ] Registered prenuptial agreement, if required by the marital property regime.
• [ ] Updated certificate of registration and real encumbrances of the property (issued within the last 30 days by the Real Estate Registry).
• [ ] IPTU bill for the current tax year or tax value certificate of the property.
• [ ] Municipal tax clearance certificate (urban property) or ITR and CCIR (rural property).
• [ ] Condominium fee clearance certificate issued by the property manager, if applicable.
• [ ] Proof of transfer tax payment (ITBI for purchase and sale or ITCMD for donation).

Base legal

• provimento_cnj 149 2023 — Provimento CNJ nº 149/2023
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• lei_federal 8.935 1994 — Lei nº 8.935/1994
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil

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